Those who believe the Left’s propaganda that it has consistently been supportive of free speech are sorely mistaken. While the Left has fought for some speakers – among them socialists, communists, Nazis, anarchists. labor leaders and war protestors – its vaunted reputation as a defender of the First Amendment is ill deserved. The fact is that the Left’s supposed fealty to free speech has always been rooted, not in the principle that Americans have the inalienable right to speak freely, but rather in the issue-specific social ends that the Left sought to advance.

For example, the Supreme Court’s seminal pornography decisions – authored by liberal Justice William Brennan, and joined by the leading liberals of the Warren Court – allowed censorship and criminalization of what one’s friends and neighbors characterize as "obscene."

The concept of "hate speech" was spawned from the racist rant of the Left’s Critical Legal Studies’ academics.

In Madsen v. Women’s Health Center, Inc., the "pro-choice" Left was able to convince the Supreme Court of the United States to uphold a state-court injunction which, in the words of Justice Scalia’s dissent, created "a 36-foot zone in which only a particular group [anti-abortion protestors], which had broken no law, cannot exercise its right[s] of speech . . . and [which enacted] a noise prohibition, applicable to that group and that group alone . . . ." And it has been the Left that for years has terrorized the anti-abortion movement by using the federal RICO statute against those with the temerity to protest – i.e., to exercise their free speech rights under the First Amendment – the destruction of fetuses. No wonder that when only days ago the Supreme Court of the United States held the RICO statute – enacted to deal with the mafia – could not be used to silence anti-abortion protestors, the sole dissenter was liberal Associate Justice Stevens. Apparently, for him, free speech ends when the liberal ox is gored.

Then there’s the Left-engineered and supported "commercial speech" doctrine, which is not only cut from the same cloth as the Left’s other attacks on free speech, but which is becoming increasingly more dangerous – as a case now pending in the Supreme Court of the United States demonstrates.

The commercial speech doctrine had its origins over a half-century ago. In the early 1940s, a New York entrepreneur who owned a submarine wanted to conduct tours of the vessel from a city pier. After the authorities denied him a permit, he had handbills printed. One side carried an advertising message promoting the tour, the other a protest against the city’s denial of permission to use the pier. The city, attempting to stop the handbilling, invoked an ordinance prohibiting the distribution of any "handbill, circular . . . or other advertising matter whatsoever in or upon any street." In an opinion by arch-liberal William O. Douglas, the Supreme Court unanimously upheld the ordinance. Other commercial speech cases followed, with the same result. The epitome was reached in the Pittsburgh Press case, where the Court characterized commercial speech as that which "does no more than propose a commercial transaction."

Building on that characterization and on California’s unfair trade practice and false advertising law, a man in San Francisco has sued shoe manufacturer Nike. The essence of his complaint is this: (1) The state law makes it tortious to engage in specified (and not-so-specified) unfair trade practices, and to make false statements in advertising, and (2) Nike has made such statements in news releases and other publications, and on its website, concerning the working conditions in its overseas factories. The Plaintiff – who California law gives the right to sue as a "private attorney general" on behalf of the public – seeks an order requiring Nike to disgorge all profits it has made in California as a result of those allegedly false statements.

Let’s understand this. Nike, an American corporation, manufactures its products offshore. It has been attacked, for treating its workers poorly, by assorted Leftists and others who neither know nor want to understand how capitalism works (Gary Trudeau, the cartoonist of "Doonsbury" is one). Nike has defended itself in the public forum through various statements to the effect that its offshore business practices were ethical, that the company provided jobs and thus income to its workers, and that its presence in third world countries conferred economic and political benefits. California law says anyone can sue Nike, alleging those statements are false. Marc Kasky has done just that. If he wins, Nike is open to horrendous damages.

One would think that Nike would have an easy and conclusive defense: the free speech protection of the First Amendment. Not so, in light of the commercial speech doctrine. The California Supreme Court has held, 4-3, that Nike was engaged in commercial speech, in a decision with savage implications for everyone – corporations and individuals alike – who, in any context a court or jury deems "commercial," dares through the spoken and written word to defend against attacks.

According to Plaintiff Kasky, Nike’s purpose in defending itself "was to maintain and increase its sales and profits by appealing to consumers opposed to inhumane manufacturing practices." In other words, Nike’s defense was mere "advertising," and thus exempt from First Amendment protection because of the commercial speech doctrine.

Nike, for its part, has claimed that it spoke out as part of an international debate over globalization and its implications. Thus, according to the company, it should be treated no differently from a political figure, editorial writer, or anyone else discussing that issue.

These conflicting views stem from Douglas’ decision creating the commercial speech doctrine in the submarine case back in the Forties, and its progeny during the past six decades. That doctrine was logically, historically, and constitutionally unsupportable when it was invented, and it remains so today. Speech is speech, and relegating to second-class status forms of it that deal with denigrated topics like commerce (whatever exactly that is) does great disservice to the First Amendment. More ominously, it has now handed the Left a weapon with which to attack American capitalism.

In the Nike case, the Supreme Court has an opportunity to eliminate that weapon, and in doing so restore to equal status speech that "does no more than propose a commercial transaction."

Henry Mark Holzer, Professor Emeritus at BrooklynLawSchool, is a constitutional lawyer and author
most recently of The Supreme Court Opinions of Clarence Thomas, 1991-2006, A
Conservative’s
Perspective.

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